9911796707
TMI Blog2010 (8) TMI 185X X X X Extracts X X X X X X X X Extracts X X X X ..... etween 3-9-2009 and 31-12-2009 they sold and delivered a quantity of Lam Coke to the respondent. Its price was Rs. 1,92,52,851. They were sold and delivered further to a purchase order dated 1-9-2009 of the respondent to them which is annexure A to the petition. A statement of invoices together with copy invoices are annexed to it as annexure B. 3. Five cheques for Rs. 1,25,00,000 were issued by the respondent to them. Each was for Rs. 25,00,000. Out of these, three cheques were presented first, but dishonoured for insufficiency of funds of the respondent. Thereafter, all five cheques were presented but returned unpaid on the ground that the respondent had stopped their payment. This exercise was done between 11-11-2009 and 17-11-2009. 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the respondent by not effectively heating it. Loss and damage to the respondent ensued from it. 10. Further, the statements of account annexed to the affidavit-in-reply are suspect. Mohata had left their services in the beginning of May, 2010. 11. Further, it was said that there were verbal negotiations between the petitioning creditor and the respondent whereby the petitioning creditor was asked not to negotiate the cheques. But they did so in violation of such oral negotiations. Mr. Talukdar, appearing on behalf of the respondent submits that his client has a bona fide defence and that this winding up application should be dismissed. Discussion and conclusions : 12. Section 434(1)(a ) enacts that if a statutory notice is not replie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25,00,000 and there is no evidence to explain otherwise. 18. Now, the question is whether the winding up application is to be admitted or not. In Mannesmann Rexroth (India) Ltd. v. National Engg. Industries Ltd. [2008] 144 Comp. Cas. 573 (Cal.) cited by Mr. Talukdar there is reference to SRC Steels (P.) Ltd. v. Bharat Industrial Corprn. Ltd. [2005] 4 CHN 343. That decision is also a Division Bench decision of our court. It says in paragraph 32 that the principles for allowing a winding up application are similar to those for allowing an application for summary judgment. 19. In Mechalec Engineers & Manufacturers v. Basic Equipment Corprn AIR 1977 SC 577 dealing with summary judgment the Supreme Court had said that even when the defendant h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... furnish bank guarantee the whole claim will stand admitted. Upon furnishing of bank guarantee the respondent will keep the bank guarantee renewed from time to time subject to orders of the civil court. The petitioning creditors will not encash the bank guarantee without leave of the civil court. If no suit is filed the respondent may not continue with the bank guarantee. 23. Therefore, the winding up application is admitted advertisements are to be published once in The Times of India and once in Ananda Bazar Patrika. Publication in the Official Gazette is dispensed with. Such publication is to be made within four weeks from date. List this application six weeks hence. 24. However, this order is stayed for six weeks to enable the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
